The Disability Law & Policy e-Newsletter
An electronic publication of
The Law, Health Policy & Disability Center at the University of Iowa College of Law
The Burton Blatt Institute at Syracuse University
June 23, 2009
Volume 6, Issue 6
The Disability Law & Policy Newsletter is a bi-weekly publication that aims to inform disability advocates, scholars, and service providers of the most current issues in disability law, policy, research, best practices, and breaking news.
Below is a topical overview of the items presented in this issue.
A. CIVIL RIGHTS: Americans with Disabilities Act (ADA), Sections
504 & 508 of the Rehabilitation Act, and state civil rights law
B. EDUCATION: Special education & youth transition to successful postsecondary outcomes
C. TECHNOLOGY / TELECOMMUNICATIONS: Assistive, information, and communication technologies
D. HEALTHCARE / BENEFITS: Social Security Income / Social Security Disability Income / Medicaid & Medicare
E. WORKFORCE: Workforce Investment Act (WIA), Ticket to Work and Work Incentives Improvement Act (TWWIIA), & Vocational Rehabilitation
F. INDEPENDENCE: News for and about the Independent Living Movement
G. EMERGENCY RESPONSE / PREPAREDNESS: Disaster mitigation and preparedness news
H. INTERNATIONAL: News for and about disability topics outside the U.S.
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A. CIVIL RIGHTS
1. Disability Discrimination Lawsuit Brought Against United Airlines
United Airlines was sued for allegedly failing to allow workers who acquire disabilities to switch to other vacant jobs matching their qualifications within the company. These United practices were actionable because reassignment may be considered a reasonable accommodation under the Americans with Disabilities Act. In this lawsuit, one of the plaintiffs was a United mechanic who could no longer work in that capacity after having a brain tumor removed and was refused a return to employment with United in other positions for which he was qualified. The Equal Employment Opportunity Commission office in San Francisco filed a class-action lawsuit against United, in part, hoping to expand the claimants beyond the five that have currently joined. The complaint accuses United of "malicious and reckless conduct" and seeks compensatory and punitive damages, and injunctive relief.
Associated Press, Government Alleges United Airlines Discriminated Against Workers Who Became Disabled, June 4, 2009, available at
2. Washington, D.C., Paratransit Service Struggles to Meet Growing Demand
MetroAccess, Washington's paratransit service, is considering several policy and cost cutting proposals in response to an unprecedented and rapidly increasing demand for services that it attributes to growing employment opportunities, awareness to disability issues, and aging of baby-boomers in the D.C. metro area. Enrollment in the program, which provides transportation services from suburban and urban areas throughout the D.C. metro area is up 16% this year and will increase an estimated 13% next year.
Unfortunately, the approximately 25,000 people enrolled in the MetroAccess program might face price hikes up to fifty percent over the next five years. Alternately, many enrollees may become ineligible for the program if MetroAccess decides to restrict eligibility, for example, by restricting access for those persons with limited vision to only night time access, or by restricting access to within three-quarters of a mile from existing train and bus services. Either service alteration would save MetroAccess millions of dollars and remain in compliance with federal law.
Lena H. Sun, Metro Takes a New Look at Rising Paratransit Costs, June 9, 2009, available at
3. Indiana Teachers Union to Continue Payment of Disability Benefits
The Indiana State Teachers Union (ISTU), in conjunction with the National Education Association (NEA), promised to continue payment of long-term disability benefits indefinitely. The Union previously set a July cut-off date for payments after discovering insufficient funds in the ISTU insurance trust from which the money was drawn. To facilitate the continuation of payments, the NEA will absorb the costs since the insurance trust has a net worth of negative $67 million due to unsound management by Morgan Stanley. Six hundred and fifty people with disabilities will continue to receive long-term disability benefits as a result. The ITSU and Indiana state officials will continue to investigate possible civil or criminal violations by Morgan Stanley in managing the insurance trust.
Deanna Martin, Ind. Teachers Union to Cover Disability Claims, June 8, 2009, available at
1. GAO Studies Seclusion & Restraint Abuses in Private and Public Schools
The Government Accountability Office (GAO) investigated the use of restraints and seclusion after allegations were made of abuse and deaths at schools and programs for teens. The GAO was asked by the Committee on Education and Labor to analyze the laws of the use of restraints and seclusion in private and public schools, assess if the allegations were widespread, and investigate individual cases of death and abuse resulting from these practices. The GAO did not find any laws in place for restrictions on the use of restraints and seclusion in schools and were also unable to find any organization or website that tracks the methods of restraints and seclusion or the severity of the abuse allegations. The GAO did find ten cases, all involving children with disabilities, in which parental consent was not given for the use of restraints or seclusion, and the children were not violent or aggressive. From these ten cases, at least five of the teachers are still employed as teachers.
Government Accountability Office, Seclusions and Restraints: Selected Cases of Death and Abuse at Public and Private Schools and Treatment Centers, May 19, 2009, available at
2. Students' with Disabilities Transition to College Becoming Easier
For students with disabilities, a transition into a college setting can be difficult, but many colleges are now improving their disability services to help with this transition. Along with SDS, faculty members are beginning to change their previous teaching methods to make learning material more accessible. An example of these changes is that teachers will print notes on different color paper because some students with autism find the black text on white paper to be harsh. This article highlights the experience of Daniel Fendley as he transitions into a college setting.
Cathryn Stout, Students with Disabilities Finding that Higher Education Is Within Their Grasp, June 7, 2009, available at
3. Colorado Addresses Imbalance in Charter School Performance
In Colorado, 6.9% of all charter school students have intellectual disabilities, very low when compared to the 9.7% of students in other public schools. The charter schools with higher percentages of students with disabilities usually had an overall school grade of "average" or lower and the opposite was true for charter schools with fewer students with intellectual disabilities. The state has created a committee and task force to begin correcting this imbalance. One of its first steps has been warning schools about possible discrimination against students with disabilities.
Jeremy P. Meyer and Burt Hubbard, Colorado's Charter Schools Enroll Fewer with Needs, Denver Post, June 13, 2009, available at
C. TECHNOLOGY / TELECOMMUNICATIONS
1. 508 Compliance Is Major Challenge for White House
Web access for people with disabilities is one of the six major technology concerns for the Obama administration, according to a recent report from the Center for American Progress. New communication and interactive applications to access the World Wide Web, called Web 2.0, are used in now-ubiquitous websites like YouTube and Facebook. This paper explores Section 508 compliance issues, such as the absence of text alternatives and video captioning, which arise when government websites link off their sites to third-party websites that are not Section 508 compliant. For example, a government agency may have a presence on a site like YouTube. The agency would argue that the YouTube site need not be 508-compliant because it is hosted on a third-party server. Others would argue that this would count as agency "use" of a website, thus triggering Section 508.
Peter Swire, Six New Media Challenges: Legal and Policy Considerations for Federal Use of Web 2.0 Technology, Center for American Progress, May 2009, available at
2. Lobbyists Aim to Bring iBOT Back
Production of the iBOT, the nation's first stair-climbing wheelchair, stopped this spring. But, recent purchasers are lobbying Congress for changes to help bring the iBOT back to the market. However, the argument is not solely about the disappearance of one device. The iBOT may be a microcosm of the way technological innovation for people with disabilities is handled in the United States. New technology must come with evidence that it changes lives in a nuanced way--something that the iBOT did not do, according to Medicare. Because Medicare deemed certain iBOT functions unnecessary for every iBOT consumer, it only would pay about $6,000 of the $22,000 price tag, thus diminishing the market for the device.
Lauran Neergaard, Questions from End of Stair-Climbing Wheelchair, Associated Press, May 25, 2009, available at
3. Universally Designed Homes Are More Competitive
A recent study by students at the University of Iowa College of Law suggests that homes built using universal design (UD) specifications are more competitive in the housing market. The survey was conducted as part of the Iowa Legal Clinic's partnership with the Washington Park housing complex in Dubuque, Iowa. The clinic is offering technical support and consultant services to aid in the adaptive restoration of an old factory into the housing complex. The students surveyed residents of Dubuque and found that half of the sample derived a benefit from UD features such as lower cabinets and larger, more open rooms. The students also suggest based on their other findings that a large group of consumers is looking for houses with some UD features.
Press Release, University of Iowa, Law Student Survey Finds Improved Marketability for Universal Design Homes, April 21, 2009, available at
4. Petition Supports Legislation for Greater Technology Access for Persons with Disabilities
In an attempt to urge lawmakers to keep pace with up-and-coming advances in information and communication, the Coalition of Organizations for Accessible Technology is circulating a petition that pushes to enact the Twenty-First Century Communications and Video Accessibility Act and similar laws and policies. The petition focuses on closed captioning for Internet video, PDAs, and cell phones.
COAT Online, Petition, available at
Summary of Proposed Legislation:
D. HEALTHCARE / BENEFITS
1. CMS Pushes for Home Dialysis Treatments with Expanded Bundled Payment
The Center for Medicare and Medicaid Services (CMS), which provides Medicare for most people with End-Stage Renal Disease, is trying to persuade people to use home dialysis rather than going to a facility for dialysis. The GAO was asked to examine CMS's plan to help pay for the costs of home dialysis with the expanded bundled payment and also to study the differences between home and facility dialysis. The GAO found that there is a lot of variation in the costs of facility and home dialysis, resulting in part from the differing number of treatments per week required in each setting, the need to provide additional training sessions for patients, and different costs between providers. CMS has not yet reported how it is going to encourage patients to use home dialysis instead of facility dialysis, but it is trying to create an incentive for patients to use home dialysis with this expanded bundled payment.
Government Accountability Office, CMS Should Monitor Effect of Bundled Payment on Home Dialysis Utilization Rates, May 2009, available at
2. Medicaid Removed Illegally from Some Families
A lawsuit brought in a Michigan federal court alleged that Michigan illegally removed people from Medicaid because their children turned eighteen years old or moved out, even though the consumers should receive continued coverage as adults with disabilities. The judge ordered that the coverage be reinstated until the state verifies the Medicaid consumers do not qualify otherwise for services. Michigan says that it will cost millions to review the cases.
Ed White, Mich.: Ruling in Medicaid Case Would Cost Millions, June 3, 2009, available at
3. Kaiser Family Foundation Offers New Health Policy News Service
In a time when healthcare is sometimes passed over in the mainstream news, the Kaiser Family Foundation wants to bring it to the forefront with their new health policy news service, known as Kaiser Health News (KHN). KHN will be made available for free to the public, including other news organizations. The news provided will range from information on major coverage programs such as Medicare and Medicaid, to the consumer perspective of the current U.S. healthcare system. KHN is staffed by journalists and editors who are knowledgeable in the area of health policy and will also feature other health policy commentators.
Press Release, Kaiser Family Foundation, Kaiser Family Foundation Launches New Non-Profit Health Policy News Service (June 1, 2009), available at
1. DOJ Guidance for Business Meeting Accessibility and Participation
This publication by the U.S. Department of Justice is aimed at ensuring business meetings attended by people with disabilities are ADA compliant and support equal participation. The article highlights important factors for businesses to keep in mind such as meeting location, room set-up, content, services, parking, and building entrances. The report also includes a chart of common barriers and possible modifications to avoid specific barriers.
U.S. Department of Justice, Removing Barriers: Planning Meetings that Are Accessible to All Participants, April 2009, available at
2. Community Colleges Creating Career Services for Students with Disabilities
The National Collaborative on Workforce & Disability for Youth and the Workforce Strategy Center have published a report examining ways in which community colleges can better serve students with disabilities and improve their effectiveness as an intermediary between education and the workforce. The report provides key suggestions to colleges, such as expanding services beyond the classroom, identifying and engaging students earlier, and using data to improve performance. The link between community colleges and the workforce is becoming increasingly important as enrollment soars in community colleges--broadly and specifically for students with disabilities.
The National Collaborative on Workforce & Disability for Youth and the Workforce Strategy Center, Career-Focused Services for Students with Disabilities at Community Colleges, March 2009, available at
3. Understanding Social Security Benefits and Employment
The new "Going to Work" guide from the Institute for Community Inclusion in Boston informs people with disabilities and service providers about social security benefits and how these benefits can be affected by earned income. The guide details how to calculate an estimated social security benefit, and how to measure the impact of any earned income. The guide also outlines methods on receiving maximum benefits.
Landry, Long-Bellil, Jordan, Institute for Community Inclusion, Going to Work: A Guide to Social Security Benefits and Employment for Young People with Disabilities, 2009, available at
1. HUD Reports Disability Related Housing Complaints
According to a report released by the U.S. Department of Housing and Urban Development (HUD), a record number of housing discrimination complaints were filed in 2008. About 4,600 of the 10,552 complaints were made by persons with a disability. The official report shows the action taken by HUD, the monetary relief granted to each party that was discriminated against, as well as fines levied against discriminating parties. In disability-related cases landlords who discriminated against tenants with disabilities or refused reasonable requests were ordered to pay tenants compensation.
U.S. Department of Housing and Urban Development, HUD and Fair Housing Partners Report Record Number of Housing Discrimination Complaints, June 8, 2009, available at
2. DBTAC Handbook Explains Federal Disability Laws
The Disability Law Handbook published by The DBTAC Southwest ADA Center helps clarify laws relevant to people with disabilities and organizations who interact with people with disabilities. The handbook includes a general overview of the ADA with specific focus on employment, transportation, and accommodations. Additionally, the Handbook discusses the Individuals with Disabilities Education Act, housing, social security and civil rights.
The DBTAC Southwest ADA Center, Disability Law Handbook, 2009, available at
G. EMERGENCY RESPONSE / PREPAREDNESS
1. Standards Institute & Homeland Security Collaborate on Safety Standards
As part of a collaborative effort of more than a hundred public/private participants, the American National Standards Institute (ANSI) and the Homeland Security Standards Panel (HSSP) published a Workshop Report based on the life experiences of persons with disabilities who experienced emergencies and national disasters, most notably Hurricane Katrina, to highlight the need for uniform standards in disaster management and response. The Report stressed the fundamental areas of concern for ensuring safety, including (1) educating the general public that disabilities impact everyone's lives at some point in varying degrees; (2) including people with disabilities in developing emergency/disaster exercises and planning scenarios; (3) developing standards for devices used in emergency evacuations; and (4) improving evacuation procedures with acute consideration for the needs of persons with disabilities. The ANSI-HSSP's next steps will include engagement with the disability community and standards-developing organizations to "identify and prioritize specific needs" and identify existing standards and the need for expanding or developing standards to meet gaps in inclusive disaster management.
American National Standards Institute, ANSI-HSSP Releases Workshop Report on Emergency Preparedness for Persons with Disabilities, May 21, 2009, available at
2. National Preparedness Includes Vital Role for National Council on Disability
The Government Accountability Office (GAO) recently published a report on national preparedness as part of its assessment of FEMA's initiatives to address gaps highlighted in its response to Hurricane Katrina. The GAO strongly recommended collaboration between FEMA and the National Council on Disability, including planning and training for disasters and emergencies because of the special needs of persons with disabilities in such instances. The GAO stressed that FEMA needs to increase its efforts in ensuring that the training of federal, state, and local officials is adequate to respond to the needs of persons with disabilities in a national disaster or other emergency. Moreover, the GAO recommended that the National Council on Disability be incorporated in all committees of Congress and FEMA entrusted with "the design and execution of national level exercises" that relate to the needs of persons with disabilities.
U.S. Government Accountability Office, National Preparedness: FEMA Has Made Progress, But Needs to Complete and Integrate Planning, Exercise and Assessment Efforts, May 9, 2009, available at
1. Funds for Social Programs Ebbing in Europe
According to Eurostat, the statistics arm of the European Union, the spending rate on social protection services by EU countries is declining. Spending for 2006 stood at 26.9 percent, down from 27.2 percent in 2003 and 27.1 percent in 2004 and 2005. The overall numbers, though, do not include the recent economic downturn and government assistance programs that followed the recession. Spending on people with disabilities was the third largest portion of social aid in the EU during the study period, only falling behind old age pensions and health care.
EUBusiness, Social Aid Declining in Europe: Eurostat, June 2, 2009, available at
2. European Special Olympics on the Road to More Funding
In a positive sign for the Special Olympics' bid to secure government funding, the European Parliament passed a written declaration of support for the program. The Special Olympics needs the funding to expand its training program and to stage its European Special Olympics next year in Warsaw and the World games two years from now in Athens. Without the money from the European Commission, the athletes will not be able to develop their abilities and the games may not go on as planned.
Derry Journal, Boost for Special Olympics, May 27, 2009, available at
3. Relocating for Care's Sake in Ireland
While Ireland has the highest rate of Down syndrome in Europe, uniformity of care for patients in the country is virtually nonexistent. The Scally family learned this when they wanted to move into a larger house to accommodate their second child. They were primarily concerned with the adequacy of local services available for their first child, Ciaran, who has Down syndrome, and received a much higher level of care after the family changed addresses. In some places in the country, regular physiotherapy, speech and language therapy, and other therapies are unavailable. The result is that children either miss out or parents have to pay for services from the private sector. The Irish government and some other grassroots groups are making an effort to change this phenomenon, forming non-profit organizations and charities to help make services uniform.
Sheila Wayman, Addressing Levels of Care, The Irish Times, June 2, 2009, available at
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The Disability Law & Policy e-Newsletter is the collaborative product of Editor-in-Chief David W. Klein, Ph.D., Executive Editor William N. Myhill, M.Ed., J.D., Managing Editor Deepti Samant, M.S. (Rehab), M.S. (ECE); and Associate Editors Jason Benetti, B.A., Erica Dolak, Kenneth Hunt, B.A., and Eric Moll, B.A..
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